Turner v. Steiner

Court of Appeals of Arizona, First Division

June 22, 2017

HEATHER LYNN TURNER, Petitioner,v.THE HONORABLE RONEE KORBIN STEINER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, LIZA MICHELLE OAKLEY, Real Party in Interest.

Petition
for Special Action from the Superior Court in Maricopa County
No. FC2016-001466 The Honorable Ronee Korbin Steiner, Judge

Campbell Law Group, Chartered, Phoenix By Claudia D. Work
National Center for Lesbian Rights, San Francisco, CA By
Shannon Price Minter, pro hac vice Counsel for Real Party in
Interest

Child
and Family Law Clinic, The University of Arizona College of
Law, Tucson By Paul D. Bennet, Barbara A. Atwood, Negar
Katirai Amicus Curiae

Presiding Judge Randall M. Howe delivered the opinion of the
Court, in which Judge Jon W. Thompson joined and to which
Judge Lawrence F. Winthrop dissented.

OPINION

HOWE,
Judge.

¶1
Heather Lynn Turner seeks special action relief from the
family court's granting Liza Michelle Oakley's motion
for reconsideration of the family court's temporary
orders, which gives Oakley rights as a legal parent to minor
child C.T. pending the resolution of their marriage
dissolution proceedings. In doing so, the family court held
that Oakley is presumed to be C.T.'s parent under A.R.S.
§ 25-814(A)(1). The court also ruled that Turner is
equitably estopped from rebutting that presumption because
her actions before the proceedings began were
"consistent with the position that this was a child of
both parties." Turner argues that the family court erred
because A.R.S. § 25-814 applies only to men and cannot
be applied to presume paternity by a woman. She further
argues that if the presumption applies, the court erred by
ruling that she is estopped from rebutting it.

¶2
Special action jurisdiction is appropriate because Turner
does not have an "equally plain, speedy and adequate
remedy by appeal." Ariz. R. Spec. Act. 1(a). Orders that
are merely preparatory to a later proceeding are not
appealable. Villares v. Pineda,217 Ariz. 623,
624-25 ¶ 10, 177 P.3d 1195, 1196-97 (App. 2008). Because
the family court's temporary orders here are merely
preparatory to a later trial on the dissolution, we accept
jurisdiction. We grant relief and reverse the family
court's ruling because the presumption of paternity
statute, A.R.S. § 25-814, is gender-specific and cannot
be applied to-or rewritten by the courts to apply to-women.
In so holding, we respectfully disagree with a recent
decision of another panel of this Court holding that the
female spouse of a child's mother can claim a presumption
of parentage under the statute. McLaughlin v. Jones,240 Ariz. 560, 382 P.3d 118 (App. 2016), rev.
granted, Apr. 18, 2017. Because we conclude that the
presumption is not applicable here, we need not reach the
issue of equitable estoppel.

FACTS
AND PROCEDURAL HISTORY

¶3
Turner and Oakley, who were in a long-term committed
relationship, began attempting to conceive a child through
artificial insemination in 2013. Although Turner would carry
the child, the pair entered no formal written or oral
agreements regarding parenting roles or rights that either
would have over the child. The parties discussed whether
Oakley should formally adopt the child should Turner become
pregnant, but were unsure if adoption was necessary or if
"just being on the birth certificate was enough."
Turner did, however, draft a will stating that if she gave
birth, Oakley would have sole custody of the child if Turner
were to die. Turner and Oakley married in October 2014.

¶4
Oakley played an active role in the artificial insemination
process, including reviewing sperm donor profiles,
accompanying Turner to appointments, and being with Turner
during the insemination procedures. Oakley did not, however,
pay for any of the services or sign any fertility clinic
documents. Instead, Turner-as the recipient of
services-signed them. One of the documents contained a
provision stating that Turner agreed that any child born from
the insemination process would be the legal child of the
recipient, "which designation shall include both
recipient and recipient's husband or partner if
applicable, " and that if a child is born "to
husband and wife, such child . . . is considered their
own."

¶5
Turner became pregnant through an insemination procedure and
gave birth to C.T. in September 2015. Oakley was present at
C.T.'s birth and cut the umbilical cord. When instructing
Turner on how to obtain a birth certificate, a hospital nurse
told Turner to list Oakley on the certificate in the section
designated "father." Turner did so, listing both
herself and Oakley on C.T.'s birth certificate. Neither
Turner nor Oakley took further action to determine whether
Oakley needed to formally adopt the child.

¶6
This unexplored issue became important in May 2016, when
Turner petitioned for dissolution of her marriage to Oakley.
In her petition, Turner stated that she and Oakley "have
one minor child born of the marriage, " explaining that
Turner was impregnated through artificial insemination and
that although Oakley was listed on the birth certificate,
Oakley had not formally adopted C.T. Turner asked that she be
granted sole legal and physical custody of C.T. and that
Oakley receive supervised visitation. She also asked that
Oakley be required to pay child support. In a subsequent
pleading, Turner asserted that because Oakley is neither
C.T.'s natural nor adoptive parent, Oakley could not
assert any rights regarding temporary legal decision-making
or parenting time.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&para;7
At the temporary orders hearing, Oakley asserted that she had
rights as C.T.'s legal parent. She argued that although
she is not the child's biological or adoptive parent, she
is the presumed parent under A.R.S. § 25-814(A)(1),
which states that "a man is presumed to be the father of
a child" if he and the mother were married within ten
months of the child's birth. The family court disagreed,
concluding that the presumption of paternity statute applied
only to men and that Oakley therefore could not claim the
presumption. The court also concluded that even if the
presumption applied, the presumption would be rebutted
because Oakley is not biologically related to C.T.
...

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